Our Non-Unitary Executive

The Trump Presidency is a strange combination of menacing and impotent. It is also fractured internally like no presidency in American history.

The menacing element is plain. Trump sets everyone on edge with incessant verbal attacks and relentlessly indecorous behavior. The maelstrom that is his presidency seems like it could at any moment push the country off the rails—massive pardons to kill the Russia investigation, a Justice Department meltdown as a result of firings and resignations, a North Korean miscalculation, or who-knows-what-other-crazy-thing. Many people worry how the impulsive Trump will handle his first crisis.

As for impotence, Trump has accomplished nothing beyond conservative judicial appointments. His administration is otherwise a comedy of errors in the exercise of executive power. What is most remarkable is the extent to which his senior officials act as if Trump were not the chief executive. Never has a president been so regularly ignored or contradicted by his own officials. I’m not talking about so-called “deep state” bureaucrats. I’m talking about senior officials in the Justice Department and the military and intelligence and foreign affairs agencies. And they are not just ignoring or contradicting him in private. They are doing so in public for all the world to see.

Trump’s Justice Department appointees have consistently gone against him on the Russia investigation: Attorney General Sessions’ recusal, Deputy Attorney General Rosenstein’s appointment of Robert Mueller, etc. They also appear to have ignored Trump's call for investigations of Hillary Clinton, Barack Obama, and voter fraud in the 2016 election.

The Acting Solicitor General and the Director of Homeland say the Immigration order is not a travel ban, even though the President insists it is.

Then-FBI Director Comey and NSA Director Rogers testified that there was no evidence to support Trump’s claim that Barack Obama directed wiretapping of Trump in Trump Tower.

Secretary of Defense James Mattis seems to be running the Pentagon entirely on his own. He also contradicted the president both on several matters related to NATO and when he said the United States was “not in Iraq to seize anybody’s oil.” The Defense Department has also thus far ignored Trump’s transgender tweet.

Trump’s tweets keep the attention on him, but the operation of some of the most important components of his administration seems entirely disconnected from the President and the White House generally. The President is a figurehead who barks out positions and desires, but his senior subordinates carry on with different commitments.

As others have noted, it’s all a remarkable inversion of the unitary executive. Even Trump’s hard power to fire subordinates—the crux of unitary executive power—hasn’t worked so well. Comey’s firing led to a more vigorous independent investigation, thanks to Trump-angering actions by Sessions and Rosenstein. Trump may well fire Sessions, but last week he suffered the embarrassing spectacle of Senate Republicans and conservative commentators warning him not to. It’s clearer now than a week ago that firing Sessions would bring Trump to yet a worse place vis a vis his own administration and Congress. The exercise of hard power won’t help him.

The fractured executive branch is partly a result of terrible executive organization but mainly the product of an incompetent, mendacious president interacting with appointed or inherited executive branch officials who possess integrity. The President says and does things that his senior officials, when asked, cannot abide. And so they tell the truth, often with an awkward wince, or they ignore the President. And in response to this overt disrespect, President Trump does … nothing.

The president seems scary, and he is, but he also has no control over his administration. There is lots of talk about Trump’s threat to the independence of the Justice Department, the FBI, the intelligence community, and the like. But the truth is that these agencies are operating with an independence to presidential wishes like never before. It’s a very strange state of affairs.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.